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general terms and conditions

1. Scope

1.1. The delivery and payment conditions exclusively apply to the business relationship between E. Prang & Co. Apparatebau GmbH & Co. KG (hereinafter "seller") and its customers (hereinafter "purchaser"), and from or in connection with the delivery of products of any kind, provided that the purchaser are merchants according to Section 14 German Civil Code (BGB) or legal persons of public law. They also apply to future deliveries, without the need for a separate notice of the seller. If special conditions for certain deliveries are agreed upon, the following general terms of delivery and payment apply subordinately and supplemental.

1.2. Contradicting or differing terms and conditions of the purchaser are expressly rejected. This also applies if the delivery is carried out unconditionally with knowledge about contradicting or differing of the purchaser. Such conditions only apply to the relationship if they are approved by the seller in writing prior to concluding the contract.

1.3. These terms of delivery and payment have been valid since 01.01.2013. All previously used versions of these General Terms and Conditions thereby lose their validity.

2. Obligations of the purchaser

2.1. The purchaser has to immediately announce the sale of the company, a change in legal form or legal succession to the seller. Further deliveries to the successor - even within the scope of agreements with the seller - will be decided separately. The decision will not be replaced by the fact that the seller unconditionally delivers to the legal successor.

2.2. Notwithstanding the above, the purchaser agrees to inform the legal successor about present general terms of delivery and payment and their validity.

3. Offers, prices

3.1. Product lists, catalogues, brochures and price lists of the Seller are intended for orientation of the purchaser; they do represent an offer of the seller. The articles presented at exhibitions and trade fairs not to be considered as patterns.

3.2. Usually, the products to be delivered are customised products, even if a certain apparatus or heat exchanger is named after a model series. The seller will assist the purchaser in the preparation of a technical description according to the purchaser's specifications which the purchaser is to check immediately concerning technical plausibility and usability. Any modification requests are to be announced to the seller immediately, latest within a period of 3 days after receipt, otherwise the technical description is to be considered as approved. The approved technical description is to be considered an offer of the purchaser and essential for the production scale. The purchaser is bound to that offer for six weeks. A purchase contract is not concluded until receipt of the written confirmation of the offer through the seller or by direct delivery.

3.3. Documentations related to the offer, such as illustrations, drawings, weight, dimensions and performance specifications are approximations only, unless expressly stated as binding. The use of this information for configuring other trades, planning of other services, or interpretation of further components is carried at your own risk. The seller reserves the copyright for cost estimates, drawings and other documents which must not be made accessible to third parties. The seller has an obligation not to make plans, marked by the purchaser as "confidential", accessible to third parties without the purchasers consent.

3.4. The seller is bound to the specified prices agreed upon on placement of the order for a period of four months. After that period the execution of the order takes place according to the valid price on the day of delivery. In any case, the purchaser is charged changes in VAT. All prices stated by the Seller are plus statutory VAT valid on the day of delivery.

3.5. If delivery takes place abroad (export supply), the purchaser is solely responsible for customs clearance as well as occurring customs, taxes, fees and charges. If the products are collected by the purchaser in case of an export delivery, the invoice is issued including VAT; a refund takes place only on receipt of a valid export certificate.

4. Delivery, delivery time, transfer of risk

4.1. The scope of delivery is determined by the written confirmation of the seller. Collateral agreements and amendments thereto require a written confirmation of the seller. Deliveries are made ex works of the seller freight forward within Germany, namely to the address of the purchaser or to the first delivery address specified by the purchaser. If the purchaser requests a carriage paid delivery, the products will be insured according to the German General Forwarders Conditions (ADSp). Any further going insurance is concluded by the purchaser at own expenses. The purchase will immediately inform the seller about the conclusion of such insurance. If the purchaser collects the products him/herself, the risk transfers at the moment of handing over the product to the purchaser, latest 7 days after dispatch of the written notification of availability of the product. In the event of shipping the products, the risk transfers to the purchaser on handing over the products to the forwarding agent. The choice of the forwarding agent and the means of transport take place by the seller. The purchaser is entitled to order the seller to deliver by other means. Any additional costs caused by that are to be borne by the purchaser.

4.2. The delivery dates or periods specified in the seller's order confirmation are non-binding, unless otherwise specified. Delivery periods begin after clarification of all technical issues with the dispatch of the order confirmation, but not before providing any documents, permits, approvals to be provided by the buyer or priory agreed deposits. The delivery period is met, if the product has left the factory prior to the expiry of the delivery period or if the readiness for dispatch has been announced. Compliance with the delivery period requires the fulfilment of the contractual obligations of the purchaser.

4.3. Two weeks after expiry of the stated delivery date or a non-binding delivery deadline, the purchaser may order the seller in writing to deliver within a reasonable time limit including a notification of refusal of acceptance of the delivery in case of non-compliance. Upon receipt of this notification, the seller is in default. The purchaser is entitled to withdraw from the contract after the fruitless expiry of the grace period. The purchaser is only entitled to claim damages for non-performance if the delay is caused by intent or gross negligence. The claim for damages is limited to the amount of the typically foreseeable damage.

4.4. The purchaser may also withdraw from the contract if the entire performance becomes impossible before the transfer of risk or an order for similar products is partially undeliverable and the purchaser has a legitimate interest to refusing a partial delivery; if this is not the case, the purchaser may reduce the payment accordingly. The same applies to the total inability of the seller to perform.

4.5. If the inability to deliver occurs during the default of acceptance or by a fault of the purchaser, the latter remains obligated to perform.

4.6. If delivery dates or periods are expressly stated as binding, the seller is already in default on expiry of the stated delivery dates or periods.

4.7. If the dispatch is delayed on request of the purchaser, he/she shall be charged the costs for storage, on storage at the seller's at least 1.0% (one percent) of the invoiced amount calculated for each month commenced, beginning one month after notification of readiness for dispatch. However, after fruitless expiry of a reasonable period of time the seller shall be entitled to use the delivery item at his/her will and to deliver to the purchaser within reasonably extended period.

4.8. Regardless of the purchaser's right according to No.10 of these terms, the purchaser is obligated to accept the product even if damaged negligibly. Partial deliveries are permitted.

5. Force Majeure

If the production or delivery of sold products is impossible, delayed or unreasonably difficult due to reasons beyond the seller's influence as well as for all other cases of force majeure, the seller is free from delivery obligations for the duration of the hindrance plus a reasonable recovery time. In particular such reasons are governmental measures, not timely or non-contractual self-supply, operational failures, lawful strikes and lock-outs and lock-outs in third party companies, regardless of their legitimacy. The seller will inform the purchaser without delay about the occurrence of such events and will state an expected new delivery date. If the disturbance lasts longer than two months or if the fulfilment of the contract becomes impossible, both parties are entitled to withdraw from the contract. In this case, a compensation obligation of the seller is excluded.

6. Reservation of title, resale, assignment of claims

6.1. All delivered products remain property of the seller until complete payment of all claims resulting from the business relationship between the seller and the purchaser. The assignment of an exchange or cheque always takes place for performance purposes; also in those cases the reserved title for delivered products remains with the seller. The reservation of title does not expire by unconditional encashment of exchanges or checks, if there are further claims of the Seller resulting from the business relations with the purchaser are to be settled. On several claims or unbalanced accounts, the reservation of title is to be considered as security for the open claims. If the purchaser gains ownership before complete payment - for whatever legal reason - the purchaser transfers the ownership of the delivered products already to the seller, yet conditional upon the time of gaining ownership.

6.2. Pledges or security assignments of the reserved products are not permitted. The purchaser is to store the products for the seller with the care of a prudent businessman, treat them with care and properly insure them against all risks at his/her own expense. The conclusion of an appropriate insurance and the regular payment of premiums are to be revealed to the seller on demand; the seller is entitled to demand the issuance of a security note. If the seller fails to comply with these obligations, the seller may insure the delivery item him/herself at the expense of the purchaser.

6.3. After prior notification, the purchaser permits the seller to inspect the stock of delivered reserved products and to grant entry to the business premises of the purchaser for this purpose at standard business hours.

6.4. The Purchaser is entitled to sell the reserved products in the ordinary course of business. Claims resulting from the sale of products or from any other legal reason regarding the reserved products, in particular for damage claims and insurance services as well as balance claims, the purchaser hereby assigns to the seller. The seller is to accept the assignment. If the sale does not take place in cash, the purchaser is obligated to reserve the title for the products sold. The effectiveness of the assignment of receivables is a precondition for resale authorisation. Any further going assignment or pledge of claims assigned to the seller for security reasons is prohibited.

6.5. The seller authorises the purchaser to withdraw at any time from collection of claims assigned to their account in his/her behalf. The permission of the seller to own collections remains unchallenged; however, the seller is agrees not to exercise their collection rights as long as the purchaser fulfils his/her payment duties. On request, the purchaser is to inform the debtor about the assigned claims of the seller and to provide necessary documents for the purpose of enforcing the claim.

6.6. The resale and collection authorisation, even without explicit declaration of the seller, expires

a) on the return of debit notes due to insufficient balance or if the purchaser is not only temporarily in default of payment or defaults in not insignificant amounts concerning his/her payment duties;

b) if the purchaser is under enforcement measures or insolvency proceedings or if the initiation of insolvency proceedings is rejected due lack of assets;

c) in all other cases jeopardising the security purpose.

The purchaser is obliged to immediately inform the seller about the occurrence of such circumstances. At that moment, any further sale of the products requires separate written consent of the seller.

6.7. If the authorization for further sale or collection has expired, the seller is entitled to recover the reserved products or to require the assignment of the recovery claims of the purchaser against third parties. Already by now the purchaser allows the seller to enter his/her premises during standard business times for the purpose of collection of the products. The recovery or seizure of the products does not constitute withdrawal from the contract, unless the provisions of the German Consumer Credit Act (VerbrKrG) apply. The seller is entitled to sell the products after withdrawal for the purchaser's account, if the purchaser is notified in writing and has been granted a minimum one-week deadline to settle outstanding receivables. The resale costs are borne by the buyer. The resale also includes applicable statutory VAT.

6.8. The processing or transformation of the products by the purchaser is always done for the seller. If the products are blended with other objects not belonging to the seller, the seller gains co-ownership of the new item in proportion of the value of the products to the other processed objects at the time of processing. For processed products the same regulations concerning the reservation of title apply as for products delivered under reservation of title. If the products are inseparably mixed with other objects not belonging to the seller, the seller gains co-ownership of the new item in proportion to the value of the products to the other processed items at the time of mixing. If the mixing takes place in a way that the item owned by the purchaser is to be considered the main item, the purchaser proportionally transfers co-ownership to the seller. The Purchaser is to keep sole ownership or co-ownership for the seller. To secure claims of the seller, the purchaser transfers also claims of third parties resulting from the combination of the purchased item with the main item. The seller is to accept this assignment.

7. Release obligation

7.1. If the realisable value of all securities provided to the seller, including the reservation of title, exceeds the secured claims by more than 20%, the seller is obligated to release securities in the amount exceeding. The selection of the securities to be released is in sole responsibility of the seller. The costs of the release are to be borne by the purchaser.

7.2. The secured claim is rated at the nominal amount plus a premium of 10% for interest and costs of prosecution. In the case of current reserved products delivered within the last 6, the realisable value of the security is calculated according to the net purchase price minus handling costs in the amount of 25%. On products up to one year old, a discount of 50% is deducted from the net purchase prices, older products not considered. The possibility of proving a higher or lower value realisation is not excluded.

8. Third party access

The purchaser is to oppose third parties access towards the reserved products or the assigned claims at his/her own expense, and is to refer to third party property and/or security assignments. He/she has to immediately inform the seller about third party access and to send all the documents required for intervention. The purchaser has to bear all costs associated with the intervention.

9. Notice of defect

9.1. The purchaser is to inspect the products immediately upon receipt and - if necessary, by a test run - to check them for proper functioning according to Sec. 377, 378 German Commercial Code (HGB). Obvious defects are to be announced to the seller in writing immediately upon receipt of the products. If a defect appears later (hidden defect), the report is to be handed in immediately upon discovery.

9.2. The purchaser is obliged to immediately report any transport damage in writing to the forwarding agent and to arrange a written damage report with the forwarding agent. In case of free-of-charge delivery, he/she has to inform the seller without delay. If the purchaser does not comply with these obligations, any claim against the seller is excluded.

10. Guarantee

10.1. The seller guarantees the purchased product to be free from defects for a period of twelve months, beginning with the date of initial operation, but longest 18 months after the risk transferred to the purchaser. This period is a limited period and also applies to claims for compensation for consequential damages, unless claims concerning illegal actions are asserted.

10.2. Requirement for a guarantee claim is the due notice of defect by the purchaser according to section 9 of this agreement and the proof of proper initial operation of the installation by qualified personnel. The initial operation report is to be submitted to the seller immediately upon the execution of such and to be provided in any case.

10.3. In the case of guarantee, the seller is entitled at its own choice to demand repair or replacement deliveries. To carry out all works and/or replacement deliveries the seller may deem necessary, the purchaser is to grant the necessary time and opportunity after notifying the seller, otherwise the seller's liability is excluded. The seller bears the costs of rectification of defects insofar as the costs have not increased due to the product has been delivered to another than the place of fulfilment. In urgent cases that jeopardise the operational safety and to prevent unproportionally high damages, the purchaser may rectify the defect him/herself or have it rectified by third parties and to claim additional cost from the seller, provided that the purchaser has ordered the seller in writing to immediately rectify the defect and the seller permitted the self-rectification in writing or is in default of rectification. Replaced parts become property of the seller. The guarantee period for the replaced parts and repairs is six months, but lasts at least until the expiry of the original guarantee period for the delivered product. In case of failure of the second rectification or replacement delivery attempt, the purchaser is entitled to demand a reduction of the purchase price (reduction) or to cancel the purchase agreement (rescission). A claim by the purchaser for additional delivery does not exist.

10.4. Unless otherwise agreed upon, further claims of the orderer are excluded. Therefore, the seller is not liable for damages not sustained to the delivered product itself; in particular the seller is not liable for lost revenues, lost profits or other financial damages of the purchaser.

10.5. The above mentioned exclusion of liability does not apply if the damage is caused by intent or gross negligence of the representatives of the seller. Further, the liability exclusion does also not apply if compensation claims due to lack of assured properties are eligible, provided that the guarantee was intended to insure the purchaser against any damage not sustained to the delivered product.

10.6. If the seller has culpably violated an essential contractual duty or a "cardinal" obligation, liability is limited to the typically foreseeable damage.

10.7. Furthermore, no guarantee is assumed for damages resulting from inappropriate or improper use, modifications to the delivery item, faulty assembly or initial operation by the orderer or third parties, natural wear and tear, faulty or negligent treatment, unsuitable equipment, replacement materials, defective construction work, unsuitable building ground, chemical, electrochemical or electrical influences, insofar as they are not due to the seller's fault.

11. Joint liability

11.1. Further claims of the purchaser, other than mentioned in paragraph 10, are excluded.

11.2. The exclusion of liability does not apply to claims under Sections 1, 4 of the German Product Liability Act (ProdHaftG). Insofar the claim limit according to paragraph 10.6. does not apply, the seller's liability is limited to the amount of the indemnification of the insurance.

11.3. If the liability of the seller is excluded or limited, this also applies to the personal liability of its employees, workers, collaborators, representatives and vicarious agents.

11.4. Any claim for damages must be asserted within a period of 12 months after becoming aware of the event having caused the damage, regardless of this knowledge, within 5 years after the event having caused the damage. The claim expires if the eligible claimant has not taken legal action through the seller within a period of 3 months after a written denial of the claim, including a simultaneous notice concerning legal consequences.

12. Payment

12.1. Payments are due within the payment terms specified on the invoice and are to be paid onto any of the accounts of the seller without further charges. Unless otherwise specified, payment is due within 8 days including 2% discount or within 30 days without discount.

12.2. If payment takes place by direct debit, the purchaser has to ensure that his/her account is sufficiently balanced. The costs of any return debit are borne by the purchaser.

12.3. Offsetting or the exercise of a lien against the claim of the seller is permitted only in case of undisputed or finally and absolutely established claims of the purchaser.

12.4. The purchaser defaults in payment without the need for a reminder after the expiry of the due date specified on the invoices. In case of payment default, the seller is entitled to charge default interest at the rate of 4% above the current Bundesbank discount rate and collection expenses in the amount of EURO 5, - per reminder. The assertion of further going damages is hereby not excluded.

13. Place of performance, place of jurisdiction, applicable law

13.1. Place of performance for all obligations resulting from the business relationship as well as for single transactions between the purchaser and the seller, including related claims is the company residence of the seller, unless otherwise stated in the order confirmation.

13.2. If the purchaser is a salesman according to the German Commercial Code (HGB), excluding named traders in Section 4 of the German Commercial Code, a legal person under public law or legal asset under public law, or those who have no general place of jurisdiction in Germany, the exclusive place of jurisdiction for all claims of the contractual parties - including bills of exchange and cheques - is the court locally and factually responsible for the residing area of the seller. This applies as local jurisdiction for all cases in which international jurisdiction of the German courts is mandatory designated.

13.3. Regardless of paragraph 13.2., the seller is entitled to take legal action against the purchaser at any other admissible place of jurisdiction.

13.4. The legal relationship between the seller and the purchaser resulting from or in relation to the delivery of products is subject to German law. The United Nations Convention on the International Sale of Products (UNKaufAbk) Convention does not apply.

14. Final regulations

14.1. Oral agreements are not taken. Changes or amendments to these terms and conditions of delivery and payment as well as all contracts concluded under these conditions require written form. The same applies to a waiver of the written form requirement.

14.2. The contractual parties agree to remove single regulations in case of invalidity and to replace the respective regulation by a valid regulation as close as possible to the intended commercial purpose of the invalid regulation.

 

Last updated 16th Jan 2014

© E. Prang & Co. Apparatebau GmbH & Co. KG | updated 2019-06-07
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